As reported by the Student Press Law Center late last month (and covered here on The Torch by Adam), Morgan State refused to renew Brown’s contract following tensions after The Spokesman published a series of articles earlier this year asking questions about the administrative use or misuse of student government funds. Spokesman reporter Reginald Larkin, quoting an unnamed source within student government, reported that amounts of up to $120,000 in student funds had been used in mysterious, unlabeled transactions, and that the administration had refused to answer questions about the money.

Following this set of stories, Morgan State administrators demanded that Brown arrange a meeting between administrators and Spokesman reporters including Larkin in an apparent effort to determine the identity of the student government source. Brown was told that her continued employment would hinge on her ability to make Spokesman reporters available for administrative interrogation. The students did not meet with the administration, and Brown was not rehired. Shortly thereafter, a new media adviser was appointed by the administration. However, according to CMA, the new adviser has no journalism experience, reports directly to the administrators criticized by previous Spokesman articles, and has already sought to review content before publication.

As Adam concluded in this space in late July, the problem with Morgan State’s refusal to rehire Brown is that public universities cannot punish faculty or staff involved with the student press in retaliation for content published by the student press—that is, public universities cannot engage in censorship by proxy. The fact pattern at issue here at Morgan State is comparable to that presented by Lane v. Simon, 495 F.3d 1182, 1186-87 (10th Cir. 2007), in which student journalists at Kansas State University brought suit against the school after the dismissal of the adviser to their award-winning student newspaper, TheCollegian. Disappointingly, the Tenth Circuit dismissed the students’ claims on a technicality, holding that they lacked standing because they had already graduated by the time the case reached the court. (As I argued at the time, the Tenth Circuit’s dismissal of the case on these grounds creates a dangerous loophole for would-be administrative censors across the country. For more on the graduation loophole—and how student plaintiffs can defeat it—be sure to see this article by noted First Amendment attorney Robert Corn-Revere and his colleagues Rory Eastburg and Micah Ratner from Davis Wright Tremaine LLP.) But before the frustrating and unjust dismissal, FIRE and the SPLC argued in an amicus brief that public universities interfere with the First Amendment rights of student journalists when they make decisions motivated by a student newspaper’s content that adversely affect that newspaper. Unfortunately, this kind of indirect retaliation seems to be exactly what happened at Morgan State, according to the findings of the extensive investigation conducted by CMA Adviser Advocate Chris Evans.

Following his investigation, Evans determined that:

Brown was removed from her position as adviser on June 30, 2009, as a result of her students exercising their civil and First Amendment rights by publishing a series of news stories and editorials that were critical of the university administration.

University documents indicate that Morgan State officials first threatened not to renew Brown’s contract when she failed to produce the students for one-on-one conversations with administrators about stories and editorials that the students had written—works of journalism that contained criticism of the administration.

Administrators indicated to Brown and others that they wanted to know the source(s) of the student journalists’ information.

Other university documents indicate that Brown conveyed to administrators that students preferred to meet as a group, but she received no response to this suggestion. The administration’s next move on this matter, months later, was to let Brown know that her job was in jeopardy for not producing the students individually.

Even if Brown could be held accountable for "failing" to produce these students, the administration’s motive—to question student journalists about their reporting and sources—is questionable. It seems that Morgan State officials are seeking to hold the adviser responsible for students’ writing and actions—which are protected by the First Amendment from interference by the adviser or other school officials.

A close connection exists between the student articles that were critical of Morgan State administrator Toya Corbett and the removal of Brown as student media adviser. In an e-mail to Evans, Perry wrote: "However, I can say that the decision not to renew the contract was not primarily due to the content or publication of student material. There was much more to it than that. . . . It is understood that students have broad latitude to publish what they wish. It is preferable that their attributions to others be informed by facts, and that ‘reporters’ at least give the appearance of having attempted to get both sides of the story." This e-mail indicates that, while the decision to remove Ms. Brown was not "primarily" because of issues of content, it was at least partly because of issues of content. Moreover, Perry’s commentary about his standards of journalism seems to imply that such standards, as represented by published articles, were in mind when Brown’s contract was not renewed.

Thus, it seems quite likely that Brown’s contract would have been renewed had it not been for the university’s content-based complaints about the newspaper stories.

CMA’s censure of Morgan State has garnered national attention, including coverage in Editor & Publisher, The Baltimore Sun, and Inside Higher Ed. As of yet, the university has refused to substantively answer the concerns raised by CMA; the school’s Vice President for Student Affairs told The Baltimore Sun simply that the speech concerns raised by Brown’s non-renewal were "bogus" and "a ploy." Meanwhile, CMA has asked that Brown be reappointed; that new governing documents for student media be established that prohibit undue administrative interference; and that guidelines for the adviser in compliance with the CMA Code of Ethics be adopted.